United States v. Michael Mazel, 603 F. App'x 379

In May 2012 Homeland Security agents identified Michael Mazel as a source on a peer-to-peer network and downloaded videos that were child pornography; a subsequent search of his home recovered ~295 images and 112 videos.
Mazel was charged and pleaded guilty to two counts: receipt (18 U.S.C. § 2252A(a)(2)) and possession (18 U.S.C. § 2252A(a)(5)(B)) of child pornography, without a Rule 11 plea agreement.
The pre-sentencing Guidelines range was 151–188 months (offense level 34, CH I) after a three-level acceptance reduction; Mazel fled three days before sentencing, was recaptured, and the government moved to withdraw acceptance credit.
The district court removed the acceptance reduction, raising the range to 210–262 months (offense level 37), and sentenced Mazel to 210 months on the receipt count and 120 months concurrent on the possession count; it imposed a $200 special assessment and five years supervised release.
On appeal Mazel challenged the substantive reasonableness of the sentence (arguing Guidelines are inflated and mitigation supported a lower sentence) and argued the receipt and possession convictions violate Double Jeopardy as lesser-included offenses.

Issue	Mazel's Argument	Government's Argument	Held
Whether the within-Guidelines sentence was substantively unreasonable	Guidelines are "grossly inflated"; mitigating factors (first offender, guilty plea, polygraph, psychologist) justify below-Guidelines sentence	Guidelines are an appropriate starting point; district court properly weighed §3553(a) factors given community risk evidence	Affirmed: district court did not abuse its discretion; sentence substantively reasonable
Whether convictions for both receipt and possession violate Double Jeopardy	Possession is a lesser-included offense of receipt; convictions should merge and resentencing is required	Government concedes Double Jeopardy violation but argues no resentencing needed because sentences were concurrent; asks for vacation of possession conviction	Vacated possession conviction as lesser-included; no resentencing because concurrent sentence on receipt remains 210 months; remand limited to dismiss Count Two and reduce special assessment to $100

Gall v. United States, 552 U.S. 38 (2007) (standard for reviewing substantive reasonableness of sentences)
Peppel v. United States, 707 F.3d 627 (6th Cir. 2013) (Guidelines range as §3553(a) starting point)
Kamper v. United States, 748 F.3d 728 (6th Cir. 2014) (district court must address merits of policy/scientific attacks on Guidelines)
Ehle v. United States, 640 F.3d 689 (6th Cir. 2011) (receipt and possession convictions may violate Double Jeopardy when unsupported by separate conduct)
DeCarlo v. United States, 434 F.3d 447 (6th Cir. 2006) (vacatur of lesser-included conviction required)
Gerick v. United States, [citation="568 F. App'x 405"] (6th Cir. 2014) (no remand for resentencing when concurrent sentences leave primary sentence unchanged)